Photo via Wikimedia Commons
Photo via Wikimedia Commons

Jurors failed to reach a verdict on a second- degree murder charge against a convicted drunken driver who got behind the wheel after partying with friends and rear-ended another vehicle, killing a man and injuring his fiancee in Irvine on Easter Sunday three years ago.

The jury, which began deliberations late Thursday afternoon, declared it was deadlocked 10-2 for guilt on the murder charge, but convicted Brad Philip Marsicano of drunken driving with injury.

Marsicano, 34, was immediately taken into custody Monday and is due back in court July 8 for a hearing on how to proceed.

Jurors were asked to determine whether the Mission Viejo resident acted with “implied malice” when he went to a friend’s house to drink beer and then followed a group to the Auld Dubliner in Tustin, where he drank some more, before getting behind the wheel of his Toyota 4Runner to go home.

Under the legal theory of implied malice, prosecutors do not have to prove a defendant had an intent to kill, but acted so recklessly that he knew his actions could lead to someone’s death.

Marsicano was aware of the dangers of drinking and driving because of a 2009 DUI in Idaho, Senior Deputy District Attorney Jennifer Walker told the jury.

DUI defendants in Idaho do not get an official admonishment from a judge, as is done in California, warning drivers they could face a murder charge if they are involved in a deadly DUI collision.

Jurors did not have the option of lesser felonies such as manslaughter.

Ted Brewsaugh, 29, was killed in the March 31, 2013, crash on Irvine Boulevard at Sand Canyon Avenue. He was in the passenger seat; his fiancee, Melanie Visser, was driving; and their two service dogs were in the backseat. One of the dogs, Harvey, was also killed in the 1:20 a.m. crash.

Marsicano’s blood-alcohol level was about .20, well over the legal limit of .08, according to the prosecution, which also charged him with driving under the influence of alcohol and filed a sentence-enhancing allegation of causing great bodily injury.

Brewsaugh and Visser had spent the evening playing the “Cards Against Humanity” drinking game at a friend’s home, Walker said. Visser had stopped after a couple of drinks because she knew she would be driving, the prosecutor said.

Records from the defendant’s car’s Event Data Recorder, or black box, indicate he did not hit the brakes and was going at least 63 mph at the point of impact, Walker said. The speed limit was 55 mph, she said.

Marsicano lied to investigators who asked him if he had a prior DUI, she said. He told police at the crash site that he was “overly tired” and shouldn’t have been driving, Walker told jurors.

Marsicano, who was having marital problems, went to a friend’s house with a 12-pack of beer to drink and commiserate, Walker said. He told police he drank five or six beers there, according to Walker.

The defendant appeared to be more concerned about the impact the collision would have on his career than the injuries to the victims, and he lamented the damage to his car, the prosecutor alleged.

But Marsicano’s attorney, Jack Earley, said his client repeatedly asked investigators about the well-being of the victims.

Marsicano’s job at the time required a great deal of driving, Earley said. He had his own business helping to implant surgical devices for patients with spinal conditions.

Before he started his own business, he worked for a company that did the same thing, which took him on longer trips out of town such as Idaho, where he was convicted of DUI.

The defendant’s wife had just given birth to their daughter before the crash and they were experiencing marital discord, Earley said. Marsicano stopped at a gas station to get coffee on the way home and figured out a plan to propose marriage counseling before he got back into the car, his attorney said.

“This is not a case of murder,” the defense attorney said. “This is someone who made a tragic mistake.”

— Wire reports 

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